D.C. Court's "State Secrets" Ruling May Have Broader Consequences

A little noticed federal appeals court ruling may have broader consequences for the Administration's attempt to shield its illegal spying program from judicial scrutiny.

In Sealed Case, __ F. 3d __ 2007 WL 2067029 (D.C. Cir. July 20, 2007), the plaintiff brought suit against the government on the basis of a wiretap in violation of Fourth Amendment rights, and, on July 20, the D.C. Circuit allowed the case to go forward despite the government's invocation of the so-called "state secrets privilege." As we explained in a letter to the Ninth Circuit, the Court held that circumstantial evidence and inferences therefrom are sufficient to let the plaintiff's case proceed. Dismissal at the case's outset based on potential privileged defenses and conjecture or suspicion would be premature, and courts are entitled to review the purportedly state secret information while adjudicating the merits of claims and defenses.

This isn't the only case in which the state secrets privilege is at issue -- it's also at the center of the U.S. government's and AT&T's appeal in our case against the telco giant, which will be heard before the Ninth Circuit Court of Appeals next Wednesday. Before the district court, the government contended that any judicial inquiry into the whether AT&T broke the law could reveal state secrets and harm national security. But in July 2006, U.S. District Court Judge Vaughn Judge Walker ruled that the case could continue, noting that "The compromise between liberty and security remains a difficult one. But dismissing this case at the outset would sacrifice liberty for no apparent enhancement of security."

As we argue in our brief to the Ninth Circuit, the government must not be allowed to prevent the judiciary from enforcing the rule of law and holding AT&T accountable for its illegal behavior. You can read our whole brief here. We also sent a supplemental letter to the court regarding Sealed Case here.

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